Excerpt:.....panchayat (general) rules 1961 - rule 12--disqualification under section 17(2) is automatic--seat of panch would not become vacant only when declaration is made under rule 12(4).;even after coming into force of rule 12 of the rajasthan panchayat and nayaya panchayat (general) rules 1961, disqualification under section 17(2) of the rajasthan panchayat act (no. xxi of 1953) is automatic. the seat of a particular panch would not become vacant only when a declaration is made under rule 12(4) of the aforesaid rules.;reference answered - - the question of the vires of the rule 12 might fall to be considered in a case where there has been a complete failure to issue the notice contemplated by rule 12 after the fourth meeting but in the situation presented in the case i am not called..........the panch of being heard.7. therefore, the intention of the legislature appears to be to make the seat vacant, automatically and if that would not have been the intention, the legislature would have used the same phraseology as used in clause 1 or clause 3 or clause 4. the fact that the state government was not authorised to declare the seat as vacant, further strengthens the above deduction that becoming of the seat vacant is an automatic result by absence from five consecutive meetings, without information and none is required to declare the seat as vacant.8. however, the effect of rule 12 now requires to be considered. section 89 of the panchayat act empowers the state government to make rules to carry out the purposes of the act. under the rule-making power, the state government has.....

Judgment:

Lodha, J.

1. By order dated September 7, 1979, learned single Judge of this Court has referred the following question :--

'Whether after coming into force of Rule 12 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961, disqualification under Section 17(2) of the Rajasthan Panchayat Act (No. XXI of 1953) is not automatic and the seat of a particular Panch becomes vacant when a declaration is made under Rule 12 (4) of the aforesaid Rules'?

On the above reference having been made, the Hon'ble Chief Justice by order dated 19th October, 1979, has directed that it should be considered and decided by this Bench.

2. The facts leading to this reference have been given in detail in the order of reference and, therefore, need not be repeated. It would be sufficient to mention that Gandharb Sain, a Panch of village Panchayat 16BB district Ganganagar, has filed the writ application for getting the resolutions of the Gram Panchayat D/- 28-7-78, 14-8-78. 28-8-78 and the order of Addl. District Development Officer dated 18th of December, 1978 by which his seat has been declared vacant, quashed by a writ of certiorari under Article 226 of the Constitution of India. The petitioner's case is that he did not absent himself from 5 consecutive meetings of Gram Panchayat and the seat did not become vacant under the provisions of Section 17 (2) of the Act.

3. The order of the Addl. D. D. O., Ganganagar, dated 18th December 1978 (Annexure 4) declares the seat of Gandharb Sain as Panch vacant on the ground that he remained absent from the meetings of the Panchayat on 14-5-78, 28-5-78. 14-6-78, 28-7-78, 14-7-78, 28-7-78 and 14-8-78, in addition to the meeting dated 28-8-78. The Addl. D.D.O. also held that the notices of the meetings were duly given to the petitioner according to the rules and the plea of the Panch that Sarpanch has manipulated these false proceedings on account of enmity has not been proved.

4. In the writ application, various contentions have been raised by the petitioner regarding the non-compliance of Rule 12 of the Rajasthan Panchayat Rules. The respondents contended before the learned single Judge that the declaration of vacancy of the seat by the Panchayat under Section 17 (2) is automatic and is not dependent upon the compliance of Rule 12. The learned single Judge having heard the arguments of the learned counsel for the parties, considered the judgments of this Court in Ladhuram v. The Chief Panchayat Officer, Rajasthan, Jaipur. (ILR (1961) 11 Raj 219), Vishwanath v. The State (ILR (1957) 7 Raj 241) : (AIR 1957 Raj 75) and Devjeet v. Gram Panchayat, Pingora (1968 Raj LW 231). The judgment of Nandram v. The State of Rajasthan (ILR (1965) 15 Raj 746) was also considered. He was of the opinion that the principle laid down in Nand Ram's case and Devjeet's case cannot be reconciled.

5. The learned single Judge extracted the following observations from the judgment of Nandram v. The State of Rajasthan (ILR (1965) 15 Raj 746) :--

'Before the enforcement of the above rule, it was held by this Court in Ladhuram v. The Chief Panchayat Officer that the disqualification under Section 17 (2) was automatic. But after the coming into force of Rule 12, the disqualification is no longer automatic. It is only when the Panchayat makes a declaration under Rule 12 (4) that the seat of a particular Panch has become vacant, that the disqualification comes into force.'

He also extracted the following observations from the judgment of Devjeet's case (1968 Raj LW 231) :--

'Section 17 (2) of the Act lays down that the absence of a member of the Panchayat at five consecutive meetings will result in the vacation of the seat by him. Therefore, Rule 12 cannot be so interpreted as to affect the legal result envisaged by Section 17 (2) of the Act as a result of the continued absence of a member for five consecutive meetings of the Panchayat. In a case, therefore, where it cannot be said that five consecutive meetings were not held and also the member of the Panchayat had absented himself from such meetings in spite of notice and he had also not given a written information for such absence in advance the rules cannot prevent the ensuing of the result namely, the vacation of the seat by the member concerned. If the rules were to provide anything which would prevent the result contemplated by the Act, then to that extent they might be said to have gone beyond the powers of the rule-making authority, as the latter does not have the power to amend or modify the Act itself, though by the rules it can provide for things which have not been provided in the Act and that too has to be done for the purposes of carrying out of purposes of the statute and not more. The question of the vires of the Rule 12 might fall to be considered in a case where there has been a complete failure to issue the notice contemplated by Rule 12 after the fourth meeting but in the situation presented in the case I am not called upon to consider the question of the vires of the rule. As a matter of construction of the rule, in my view, the same is to be construed as a directory provision as that alone will be in keeping with the scheme of the Act as adumbrated in Section 17 (2) thereof.'

He also extracted the following observations from Vishwanath's case (AIR 1957 Raj 75):--

'With great respect, we are inclined to agree with the view expressed in that decision about the analogous provision of the Town Municipalities Act and the said decision has thrown a good deal of light on the Interpretation of the provisions of Section 17 of the present Act, On the whole, therefore, we are satisfied that the view taken by the learned Judge on the interpretation of Section 17 (2) of the Act is correct and that the appellant did incur the disqualification in question on account of which automatically his membership of the Panchayat ceased.'

It may be pointed out that in the judgments of Ladhuram v. C. P. O., Jaipur, {ILR (1961) 11 Raj 219); Vishwanath v. State, the word 'automatic' has been used. In Ladhuram's case, it was observed as under, --

'We, therefore, feel that in a case of this nature where there has been absence from five consecutive meetings, the learned Judge was right in holding that the disqualification incurred was automatic and nothing further appeared to be done unless he came within some of the exceptions pointed out in the section.'

The learned single Judge was of the opinion that while holding Rule 12 of the Rules as directory in Devjeet's case, the judgments of Ladhuram's case and Nandram's case were not taken into consideration.

6. Section 17 (2) of the Rajasthan Panchayat Act is as under, --

'If any Panch, Sarpanch or Upsarpanch during the term of his office absents himself from five consecutive meetings of the Panchayat without giving information in writng to the Panchayat, he shall cease to be such Panch, Sarpanch or Upsarpanch and his seat shall become vacant'

A comparative study of the provisions of Sub-sections (1), (3) and (4) and Sub-section (2) of Section 17 would show that whereas in Sub-sections (1), (3) and (4), the declaration of the seat to be vacant and removal of a Panch, Sarpanch or Upsarpanch is made by the State Government, in Sub-section (4), the State Government is required to provide an opportunity of being heard to the person whose seat is sought to be declared vacant, under Sub-section (4), a detailed enquiry is contemplated. In contradistinction to the above, the seat of the Panch is not required to be declared vacant by the State Government nor there is any provision in Sub-section (2), which requires that any enquiry should be conducted or that an opportunity should be given to the Panch of being heard.

7. Therefore, the intention of the Legislature appears to be to make the seat vacant, automatically and if that would not have been the intention, the legislature would have used the same phraseology as used in Clause 1 or Clause 3 or Clause 4. The fact that the State Government was not authorised to declare the seat as vacant, further strengthens the above deduction that becoming of the seat vacant is an automatic result by absence from five consecutive meetings, without information and none is required to declare the seat as vacant.

8. However, the effect of Rule 12 now requires to be considered. Section 89 of the Panchayat Act empowers the State Government to make rules to carry out the purposes of the Act. Under the rule-making power, the State Government has framed Rule 12. Rule 12 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules is as under, --

'12. Vacation for absence from meetings. -- In the case of a Panch, Sarpanch or Upsarpanch of a Panchayat becoming liable or probably liable for absence from meetings under Sub-section (2) of Section 17, the following procedure shall be observed namely, --

(1) If such Panch, Sarpanch, Upsarpanch, hereafter referred as the absentee, so absents himself from four consecutive meetings of the Panchayat the Sarpanch, or in his absence the Upsarpanch or any other presiding Panch, shall give to the absentee a notice in writing as soon as may be after the close of the fourth meeting and before the fifth meeting takes place, stating that he has in spite of due notice, not attended four immediately preceding meetings held on the dates to be stated in the notice and that his seat shall become vacant if he does not attend the fifth meeting of which due notice shall be received by him in due course of time.

(2) Such notice shall be sent by registered post or through a messenger and shall be deemed to have been served on the person to whom it is addressed if it is delivered to him or to any adult male member of his family residing with him.

(3) In case the absentee or any such adult male member refused to receive such notice, it shall be deemed to have been duly served if, --

(4) If thereafter the absentee fails to attend the fifth meeting of the Pancha-yat, the matter shall be placed before the Panchayat at that meeting and such Panchayat, if it is satisfied that the notice referred to in Clause (1) and the notice of the date of the fifth meeting as aforesaid were duly served on the absentee shall pass a resolution to the effect that the absentee has remained absent on five consecutive meetings and forward a copy of the resolution together with the record of notices of meetings issued to the absentee and any other papers that may be relevant, to the Deputy District Development Officer with the recommendation.

(5) On receipt of the record referred to in Clause (4), the Deputy District Development Officer may upon perusing the record and considering the recommendation of the Panchayat and after making such further enquiry he may consider necessary and after giving the absentee an opportunity of being heard, declare such seat to have become vacant or make such order as he may think proper in the circumstances of the case.

The important features of this rule are that a notice is required to be given to the Panch, Sarpanch or Upsarpanch whose seat is sought to be declared vacant on account of their absence from meetings soon after the close of the fourth meeting and before the fifth meeting takes place, stating that he in spite of due notice, has not attended four meetings, held on the days to be stated in the notice and the seat shall become vacant if he does not attend the fifth meeting of which due notice shall be received in due course of time. On the failure of the absentee, to attend the fifth meeting, the matter is required to be placed before the Panchayat in the fifth meeting and on it, the Panchayat is required to pass resolution to the effect that the absentee has remained absent on five consecutive meetings and a copy of the resolution is required to be forwarded together with the record of the notices of the meeting issued to the absentee. One copy of this resolution is required to be forwarded to the Deputy District Development Officer with the above recommendation and the latter after making such further enquiry as he may consider necessary and after giving the absentee an opportunity of being heard, declare such seat to be vacant.

9. Thus, a perusal of the provisions of Rule 12 would show that many safeguards have been provided to ensure that the alleged absentee gets notice of all the meetings and also of the warning that his seat would become vacant if he remains absent from the fifth meeting. The second safeguard provided is that instead of the Panchayat thus, declaring the seat vacant, this question is considered and decided by a Deputy District Development Officer. This rule has been framed for ensuring fairness and for ruling out the possibility of any fraud or manipulation by the Sarpanch for removing inconvenient Panch, or Upsarpanch from the office, by manipulating! and recording his absence on five consecutive meetings.

10. Since Section 89 in terms empowers the State Government to frame rules, the Government had the power to make rules for the purposes of giving effect to Section 17 of the Act. It is established law that a rule can never contravene a provision of the Act and it can neither curtail nor add anything to the statutory power under the Act. The rule-making authority is required to frame rule for implementation of the Act and that being so, no rule could have been framed which goes against Section 17 (2) of the Act. The Rules 12 could, therefore, be interpreted to pro-vide a procedure for making Section 17 (2) effective.

11. In Devjeet's case, (1968 Raj LW 231), the learned single Judge had occasion to consider Rule 12 and Section 17 (2). The court took the view that as a matter of construction of this rule, the same is to be construed as a directory provision as that alone will be in keeping with the scheme of the Act as mentioned in Section 17 (2) thereof. While doing so, the court expressly kept open the question of validity of Rule 12. It was observed that the question of vires of Rule 12 might fall to be considered in a case where there has been a complete failure to issue the notice contemplated by Rule 12 after the fourth meeting but in the situation presented in the case I am not inclined to consider the question of vires of the rule.

12. Rule 12 is, therefore, to be interpreted and understood to mean the procedure for enforcing Section 17 (2).

13. Unless it can be shown that Rule 12 contravenes Section 17 (2), Rule 12 will have to be given effect to for the purposes of enforcing Section 17 (2) of the Act. The basic requirement for declaring a seat to be vacant on account of absence would be of Section 17 (2) only and Rule 12 would be subsidiary to it.

14. In view of this Rule 12 cannot be said to be mandatory and has been, rightly held to be directory by this Court in the case of Devjeet, (1968 Raj LW 231). Since the rule is directory, substantial compliance of this rule is enough and non-compliance of a technical requirement about the method of serving notice etc. cannot save the Panch from effect of Section 17 (2).

15. We now, would come to the question whether there is any conflict between the judgments of Nandram's case (ILR (1965) 15 Raj 746) and Devjeet's case. In Devjeet's case, (1968 Raj LW 231), this Court emphasised that Rule 12 is directory. In Nandram's case, this Court mentioned that after the coming into force of Rule 12, the declaration is not automatic and it is indeed for the Panchayat under Rule 12 (4) to apply to the Addl. District Development Officer that the seat of a particular Panch has become vacant and it would become effective only when the declaration is made. In this case, it was noted that before the enforcement of the above rule, it was held by this Court in Ladhuram v. C.P.O. (ILR (1961) 11 Raj 219) that vacation of seat under Section 17 (2) was automatic.

16. In fact, whereas in Devjeet's case (1968 Raj LW 231) the Court has held that Rule 12 is directory and it cannot go beyond the Section 17 (2) of the Act, in Nandram's case, it has been held that the view taken in Ladhuram's case of the disqualification of Section 17 (2) being automatic, no longer can be continued because of the coming into force of Rule 12 where a declaration is required to be made by the Additional District Development Officer for declaring a seat as vacant. Since Ladhuram's case ILR. (1961) 11 Raj 219 was decided first and later on Rule 12 was introduced, it was but natural that in Nandram's case, (ILR (1965) 15 Raj 746) notice was taken of it.

17. It is true that in Nandram's case (ILR (1965) 15 Raj 746) great emphasis has been laid on declaration of the seat to be vacant by Additional District Development Officer in view of Rule 12, but in Devjeet's case, (1968 Raj LW 231) the Court has held that once it is found that five consecutive meetings were held and after notice the absentee Panch did not attend these meetings and also information for remaining absent was not sent earlier to the Panchayat by the absentee, the result contemplated by Section 17 (2) would follow and nothing in Rule 12 would come in the way. To this limited extent, it may be stated that importance and emphasis given to Rule 12 in the two judgments are slightly different.

18. However, we do not see any reason to hold that after the coming into force of Rule 12, the disqualifications of Section 17 (2) of the Act has ceased to be automatic and the seat of a particular Panch becomes vacant only when a declaration is made under Rule 12 (4) of the aforesaid Rules. In our opinion, since Rule 12 is directory, in a given case where on evidence, a court can clearly! come to the conclusion that five consecutive meetings were held and they were held after notice to the absentee and the absentee remained absent without information to the Panchayat as contemplated by Section 17 (2), the seat would become vacant under Section 17 (2) even though there may be non-compliance of Rule 12. However, in case of any doubt about the existence of these pre-conditions, the seat would be declared vacant only on substantial compliance of Rule 12.

19. It would depend upon facts of each case whether substantial compliance of Rule 12 has been made or not, but we are of the opinion that the view taken by this Court in Devjeet's case (1968 Raj LW 231) lays down the correct law. All the provisions of Rule 12 are directory and non-compliance of none of them can result in providing immunity to a absentee, once it is established on the record that as a matter of fact, he has remained absent for five consecutive meetings after notice and without giving information to the Panchayat that he would remain absent. The requirement of notice of the meetings is also there in the Act and therefore, whenever a question of absence from meeting is to be considered, the prerequisite condition of the Panch, Sarpanch or Upsarpanch having notice of the meeting will have to be established,

20. The mere fact that the notice is not given in the prescribed manner of Rule 12 would not provide any defence to the absentee, if it is established that in fact he had notice of the meeting though by different method or in a different manner. Similarly, the mere fact that there are certain defects in the notice and it is not worded exactly as required by Rule 12 would also not provide any defence to the absentee. Again, in case the Additional District Development Officer fails to come to a finding on the point for declaration of the seat to be vacant, that also would not absolve the absentee from the liability of disqualification under Section 17 (2) because if Rule 12 is interpreted in any other manner, this sub-clause (5) of Rule 12 would create a rider on Section 17 (2), which cannot be permitted because a rule making authority can never amend the Act nor can create any rider over the provision of the Act,

21. We are, therefore, of opinion that the expression of the view in Nandram's case (ILR (1965) 15 Raj 746) that unless declaration is given under Rule 12 (5), a seat shall not become vacant, is not correct and to that extent, the judgment of Nandram's case fails to lay down the correct law.

22. In view of the above, our answer to the reference by the learned single Judge is as under:--

'Even after coming into force of Rule 12 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961, disqualification under Section 17 (2) of the Rajasthan Panchayat Act (No. XXI of 1953) is automatic. The seat of a particular Panch would not become vacant only when a declaration is made under Rule 12 (4) of the aforesaid Rules.'

23. Let this case be now returned to single Bench with the above reply for decision on merits.